Supreme Court will require warrants for searching smartphones

Despite the fact that phones can offer valuable pieces of evidence that could arguably be used to put criminals behind bars, the Supreme Court has ruled that they cannot be classified in the same way as other “pocket litter,” saying that police officers must obtain warrants to search such devices.

In a unanimous decision, the Supreme Court said that the amount of information potentially stored on a smartphone coupled with the access it could give into other aspects of a person’s life them constitutionally protected under the 4th Amendment.

As pointed out by Andy Pincus, a partner at law firm Mayer Brown LLP and a member of the Center for Democracy & Technology (CDT), the argument for unfettered searchability of smartphones comes from the thought that “when you’re arrested you should have a dramatically reduced expectation of privacy. But that theory was recognized in an era when it wasn’t physically possible to carry as much of this information with you,” Pincus says.

According to LexisNexis, a gigabyte can contain around 65,000 Microsoft word documents of nine pages apiece. Consider the fact that most phones come with 16 gigs of space standard, and you’re talking about multiple libraries worth of material available on each smartphone

The Supreme Court agreed that the original notion of searching pockets could not have accounted for this possibility in only a few hundred years, but also agreed that access to information could offer some level of protection to officers making these street level judgment calls.

In the opinion, penned by justice John Roberts, the SCOTUS agreed that up until now it had balanced the need to protect the private interests of citizens with those of law enforcement on a case by case basis, saying, “absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intruders upon and individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”

But while this may have previously worked on a case by case basis, the Supreme Court has now said that it will require police officers obtain a warrant to search the smartphones. While it will not nullify the use of cellphone stored data as evidence wholesale, it will add another step, saving some small sliver of privacy for John Q. Public.

The opinion continued, “our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.”

Executive Editor

Chris DiMarco

Chris DiMarco, Executive Editor of InsideCounsel magazine, has a background in multimedia production with previous involvement in projects in which he developed and created content...